Memorandum by Dr Eoin O'Malley, School
of Law and Government, Dublin City University
Ireland is a useful comparator for the UK on
this subject because it has much the same institutional set up
and quite similar political culture, both inherited from the British.
One fundamental difference is the existence of a codified constitution
which is quite rigid requiring a referendum of the people to change
it and it is for this reason that Ireland is a country with more
experience of referendums than most others.
1. The referendum as a tool can give a good
deal of democratic weight to a decision, and allows the people
and political class to focus on an issue in quite a concentrated
way. This enables the citizens of a country to learn quite deeply
about the topic. At a time when many are extolling the virtues
of deliberative democracy, it might then be thought to produce
better decisions. That said, referendum campaigns can become dominated
by non-issues when the actual subject of the referendum is not
very accessiblefor instance abortion and conscription became
major issues in the referendums on the Lisbon Treaty.
2. The major issue of how a referendum would
work in the UK is to do with what the referendum proposes to do.
In Ireland it is clearly used just to change the constitution,
which is somewhat inefficient when there are minor housekeeping
changes requiring very expensive campaigns, often with little
public or political engagement. It is also arguable that some
issues, such as EU Treaties, are too complex for ordinary people
to understand and instead other issues that people can understand
are projected on to the actual question. Other issues are so technical
in naturean example might be the referendum on the confidentiality
of cabinet discussions.
3. As the UK has no codified constitution,
or at least no single document it can call the constitution, this
is not going to be the route to referendums, but one could argue
that major constitutional changes, such as the decision to join
the EEC should require the assent of the people and that this
would give democratic weight and some permanence to such a decision.
The Irish Supreme Court has ruled that any Treaty of the EU also
has constitutional force and requires constitutional amendment
which at least engages the Irish people in these subjects more
than in most other countries. The question arises, who, in the
UK could decide what is a major constitutional issue? If it were
the government, this would make a mockery of the constitution.
Perhaps Parliament could with a statutorily-guaranteed free vote.
4. The question of whether it supplants
parliamentary sovereignty is important, but arguably for certain
issues that are of such importance, one would not want to see
Parliament able to change the constitution very easilyfor
instance the proposal to abolish the post of Lord Chancellor.
But does one really want or expect that ordinary citizens are
interested or qualified to have informed opinions on this type
of subject? A better solution might be to look at the Swedish
system where constitutional changes are made by legislation at
both sides of a general election, so at least two parliaments
have acceded to the changes and the public have the ability to
make it an election issue if they so want.
5. As well as constitutional issues, in
Ireland moral issues have become "constitutional" issues.
Abortion, especially has become a major issue in the courts, mainly
because a clause in the constitution was open to differing interpretations.
As such the law on abortion in Ireland is given to us by the courts
rather than the Oireachtas (Parliament). The courts have not overtly
attempted to take on this role, it has been pushed on them by
a legislature unwilling to legislate and the pretty horrific cases
that it has asked to adjudicate on. At times politicians are happy
to push out issues to referendum, especially where there are splits
within parties, this can reduce the pressures of fissurethis
I suspect was one of the reasons for the referendum on EEC membership
in the UK. Sometimes referendums are of purely optical value,
so next year (2010) Ireland will probably have a referendum on
enshrining children's rights with constitutional guarantee, which
will probably be legally valueless as the courts already regard
children as individuals with rights independent of their parents,
but it will show that the government "cares", and is
willing to act on the horrific revelations of the systematic abuse
sanctioned by the Catholic Church in Ireland on children in its
careat 3 million it is an expensive PR exercise.
6. In Ireland referendums are conducted
under rules resulting from a number of legal challenges. So government
cannot use public funds to campaign for a specific result, which
on the whole seems fair, and does force political parties to campaign
and use their own resources, therefore minimising the likelihood
of spurious referendums. Ireland, again as a result of legal rulings,
has an independent Referendum Commission which non-partisan information
on the subject of the referendum. It is argued that very often
this information is so banal it depresses turnout and the Commission
does not engage in the veracity of the points made in the course
of the campaign, making it largely irrelevant. Furthermore broadcasting
rules require equal time be given to each side which leads to
some odd situations where unelected interest groups who have positions
contrary to the political parties get inordinate amounts of air-time.
One could of course argue that this at least ensures that there
is a healthy contestability of views. But overall it seems that
most agree this is not a model one would want to adopt.
7. Ireland has no threshold requirement
for referendums affecting the constitution (there are turnout
requirements for other types of referendum, but these have never
taken place) and a simple majority is required. Turnout is seen
to have been a determining factor in the defeat of the Nice and
Lisbon Treaties in 2001 and 2008 respectivelyboth subsequently
overturned by a second referendum with significantly higher turnout.
As such it would appear that turnout is important, as a low turnout
may indicate that only small elements of the electorate, with
views that do not accord with the rest of the population have
engaged. If one includes a turnout requirement it can also lead
to deliberate intention to defeat a proposal that might otherwise
be passed. It is also instructive that the weather on the day
of a divorce referendum in 1995 might have had an impact as it
rained in the more conservative west, thus depressing turnout
there, whereas it was fine on the more liberal east coast.
8. Referendum wording tends to indicate
two options, accepting or rejecting a proposal and as such give
a good deal of power to the group writing that proposalit
is arguable that the 1995 divorce referendum was passed only because
the government using opinion poll evidence had submitted a wording
that it estimated could be passedanything more liberal
might have been rejected. Therefore a great deal of power would
be given to those framing the questions (even informally). For
instance, when there was a discussion of having a referendum on
the EU's Constitutional Treaty in the UK, the then prime minister,
Tony Blair, suggested that the referendum would be about whether
Britain wanted to be in Europe or out of it, thus framing the
referendum about Britain's membership of the EU rather than just
its accession to the Treaty.
9. Multi-option questions might enable to
one draw a more accurate picture of what the electorate actually
wantsif indeed we feel that the electorate wants something
coherent, i.e. that there is a "will of the people"
rather than a collection of "wills". It might be cheaper
and easier to commission an opinion poll on the subject, and I
suspect this is frequently employed by government considering
major legislative changes already. The argument in favour of the
referendum is that people might think more deeply when they are
being asked to go out and vote rather than been asked a question
on their doorstep by a nice lady from Mori. This is why it is
important that any referendum should be binding, otherwise the
whole point of it is cast aside. Again one needs to be careful
as if you decide to ask questions on a number of aspects of a
certain issue, one might get contradictory resultsfor example
if asked two questions on abortion, one on whether to allow it
or not and a second as to what stage in pregnancy it should be
allowed might yield a result that the people want to ban abortion
in all circumstances and to allow it only before 16 weeks of pregnancy.
One can also see where voters would support proposals to extend
health care rights to all and reduce taxation. It might then be
useful to ask a single question on a broad principle. But the
question of what legislation will be enacted following a referendum
is important, as if the legislation is not on offer, voters are
essentially being asked to vote in the darkas frequently
happens on abortion referendums in Ireland.
10. Overall the experience of the referendum
in Ireland points to a healthy democratic legitimacy and engagement
with the constitution as a document. But there have been some
problems which should not be repeated. The rigidity of the Irish
constitution means that some legitimate attempts to steer public
policy in one direction or another have been thwarted or not even
undertaken because of the potential difficulties posed by holding
a referendum on an awkward subject that would not necessarily
be easy to sell to the people.
16 December 2009